BBA Hosts Panel on New Human Trafficking Vacatur Law

Guest Post: Elena Kuran is the current Lawyer Referral Service Intern at the Boston Bar Association. Elena is a third-year International Affairs major at Northeastern University.

Last week, the BBA hosted “Post-Conviction Relief for Survivors of Human Trafficking: Overview of New Massachusetts Law.” The discussion was led by Lavinia Weizel (Mintz, Associate), Alec Zadek (Mintz, Member), Julie Dahlstrom (Boston University Law School, Clinical Associate Professor of Law), Deanna Tamborelli (Boston University Law School, Student), and Chelsea Tejada (Boston University Law School, Student).

The panel began by contextualizing the new Massachusetts law that assists survivors of human trafficking by streamlining the process of vacating convictions. Massachusetts is one of forty states that has vacatur laws for adult survivors of sex trafficking. Prior to the new law, vacating a conviction under Massachusetts Rule of Criminal Procedure 30(b) was a complex process that demanded the survivor to provide an affidavit, a requirement that was identified as taking a significant toll on the survivor’s mental wellbeing.

The new law, which was passed as part of “An Act Relative to Criminal Justice Reform” in 2018, mitigates the complexities and emotional tolls of Massachusetts Rule of Criminal Procedure 30(b). The streamlined process, while does not require an affidavit, requires a burden of proof. The survivor has the burden to establish a “reasonable probability” that their participation in the offense was “a result” of their having been a victim of human trafficking. Exceptions are made in cases in which the survivor was a minor during the time of the offense, or the survivor can provide official documentation of their status as a victim of human trafficking at the time of the offense.

A motion may be heard by any sitting justice of a court of competent jurisdiction. A conviction vacated under the new law is deemed to have been vacated “on the merits.” The new law helps survivors by remedying past injustice, empowering them to access opportunities, and providing them a means to reclaim their experience.

As of now, the new law remains untested. For potential cases in Massachusetts, the panel encouraged referrals to be made to the Boston University Law School’s Immigrants’ Rights and Human Trafficking Program at 617-353-0993. For convictions outside of Massachusetts, the ABA Survivor Reentry Project serves as a good resource, as it conducts intake on an ongoing basis.